Canada’s Progress in its Commitment to Ending AIDS as a Global Health Threat by 2030

Nick PineauBy Nick Pineau

My final project with the HIV Legal Network involved writing a report analyzing Canada’s progress in its commitment toward ending AIDS as a global health threat by 2030. In March 2021, UNAIDS released its Global AIDS Strategy (hereafter “the Strategy”) for 2021–2026, which offers numerous recommendations to ensure the world has zero new HIV infections, zero discrimination, and zero AIDS-related deaths by 2030. However, as COVID-19 developed into another global pandemic in early 2020, the progress toward ending the AIDS epidemic has halted. Furthermore, the twin pandemics have inequitably exacerbated the impact AIDS has on marginalized communities. To properly assess the barriers to people living with or affected by HIV, the Strategy offers numerous recommendations through an “inequalities lens”, evaluating the pandemic’s impact from the perspective of those most affected by it.

Despite its commitment toward ending the AIDS epidemic, Canada is still far from achieving the goals it has set out for itself. By 2019, over forty countries were within reach of the epidemiological milestone of endings AIDS—yet Canada was not among them. Populations at risk of HIV, including men who have sex with men, transgender people, people who inject drugs, sex workers and their clients, and people in prisons or other closed settings, remain in a precarious position within our country. Much of the HIV Legal Network’s work centres around the result areas mentioned in the Strategy. For this blog post, I will take a look at how Canada is doing in comparison to the Strategy’s recommendations in three key areas: prison rights, drug use, and HIV non-disclosure.

For prison rights, the Strategy advocates for a harm reduction approach for prison or other closed settings, including voluntary HIV testing and treatment, needle-syringe programs, opioid substitution therapy, and naloxone kits. While the Correctional Services of Canada stipulates that they offer inmate HIV testing, access to opioid treatment, and PrEP & PEP, there is limited data on the prevalence of such programs at each individual facility across Canada. The CSC should strive to better report on such programs to properly assess whether Canadian inmates are receiving adequate harm reduction services. Furthermore, Canada’s Prison Needle Exchange Program has not accelerated at the requisite rate—the program has only been implemented at 11 of the 53 federal institutions in Canada. Such a program could significantly reduce HIV transmission at closed facilities and secure inmates’ right to security of the person.

The Strategy also recommends that discriminatory laws and policies against drug use ought to be repealed, including those that criminalize drug possession for personal use. Rather than punish and stigmatize people who use drugs, a health-centred approach to drug use should be comprehensive, people-centred (with community-led responses and systems), and gender transformative. Canada has recently made progress in decriminalizing drug possession for personal use—a prosecutorial directive was issued in August 2020 to divert individuals from the criminal justice system for simple possession cases. Yet the criminal system may remain a blunt tool to deal with the intricacies of drug use. Rather than further stigmatizing individuals who use drugs by sending them to prison for, for instance, sharing between friends (and thus trafficking), Canada ought to adopt a health-centred model for dealing with drug use and not further entrench the marginalization of people who use drugs.

Finally, Canada is among the 92 countries worldwide that criminalize HIV non-disclosure. The Strategy recommends creating an enabling legal environment that de-stigmatizes seropositivity and the removal of discriminatory laws that criminalize HIV non-disclosure. The concept of U=U, undetectable = transmissible, whereby HIV-positive individuals with ‘undetectable’ viral loads cannot realistically transmit the virus, has the potential to accelerate anti-stigma efforts. Canada has recently made progress in lessening the criminality of HIV non-disclosure, with then-Attorney General Jody Wilson-Raybould issuing a prosecutorial directive in 2018 not to prosecute HIV non-disclosure except in more severe cases. Wilson-Raybould acknowledged that HIV is a public health issue that disproportionately affects Indigenous, gay, and Black persons in Canada, and I would contend that using the criminal law to solve such an issue can further entrench stigmatization. Yet the directive’s force is lesser than if a Criminal Code amendment were made to legislate on the subject. HIV non-disclosure remains a crime on the books in Canada, and can be prosecuted as aggravated sexual assault which carries a maximum penalty of life imprisonment. This could undermine public health initiatives to encourage HIV testing, and may simultaneously increase the stigma and discrimination faced by people living with HIV. Canada should adhere to the Strategy’s recommendations to fully realize the rights of those living with HIV.

This brief survey demonstrates that Canada has much to do in order to ensure the country is on track toward ending AIDS as a public health threat by 2030. Canada ought to adhere to the Strategy’s recommendations and fully implement harm reduction initiatives in prisons, decriminalize drug possession for personal use, and decriminalize HIV non-disclosure. With renewed political commitment, advocacy, and community mobilization, Canada has the potential to fully realize the human rights of people living with or affected by HIV and AIDS.

Equitable Access to a Quasi-Constitutionally Protected Facility

By Nicholas Pineau

My summer spent with the HIV Legal Network has radically deepened my understanding of harm reduction and human rights in Canada. While my first year of law school discussed the subject in various classes (such as in the context of physician-assisted suicide in the Carter case), I have enjoyed getting to learn more about supervised consumption sites (SCS) during my internship. SCS were quasi-constitutionally protected by the Supreme Court of Canada in their 2011 Insite decision. The Court held that such sites save lives, and the Minister of Health arbitrarily denying a Vancouver site the requisite exemption from the Controlled Drugs and Substances Act ran afoul of the right to life, liberty, and security of the person of individuals who access the site. While this decision deepened acceptance of harm reduction practices in Canada, there remains much work to be done to ensure equitable access to SCS.

One issue I have been working on during my internship is the practice of assisted injection, where individuals require assistance to properly inject substances at SCS. This practice is currently not allowed at SCS in Canada, creating a barrier to access for certain marginalized groups. Notably, it is often women (who often inject with intimate partners) and persons with disabilities who struggle to inject on their own. This limits access to a life-saving facility, and one is left to question whether such a restriction would run afoul of Section 7 of the Charter if a new decision à la Insite were to come out today.

One barrier erected by the Canadian government in its restriction on assisted injection is that it leaves the door open to numerous forms of liability for nurses in Canada if they were to assist SCS clients. A recent report I helped draft for the Network focused on some of these considerations—what are the potential criminal, civil, and professional body liabilities that could arise if a nurse were to assist with injection, and something were to go wrong?

This report allowed me to sharpen my legal research, reasoning, and writing skills. Because there is limited jurisprudence on the subject, I had to be creative in my utilization of available Canadian law. As an example, to answer the question of whether a nurse could be found guilty of manslaughter if a client were to die after being assisted with injection, I relied on the 2019 case R v Javanmardi, where an Ontario naturopathic doctor was not held liable for manslaughter for injecting an individual with a naturopathic substance. Justice Abella, writing the majority opinion, held that the act of injecting by a properly qualified professional was not dangerous enough in and of itself to warrant a finding of the requisite mens rea to convict someone of manslaughter. While the Javanmardi case is not a direct parallel to assisted injection at SCS, it offers an analogous reason to believe that the Court may see assisted injection as a life-saving harm reduction practice that increases equitable access to SCS, rather than a criminal act.

Another interesting consideration for the practice of assisted injection is how ‘safe supply’ impacts the potential liability nurses may face. As a result of the ‘dual pandemics’ of COVID-19 and opioid overdoses in Canada, the Canadian government authorized physician-prescribed opioids to limit the potential for overdose from the toxic street supply. The fact that such opioids are prescribed may limit the potential liability nurses may face for assisting with injection. The strength and non-toxicity of the substances are known before injecting, and if the alternative is that individuals inject on the street—where there is a risk of disease transmission from needle sharing or risk of arrest from police surveillance—then it becomes difficult to understand why assisted injection is restricted at SCS. A harm reduction perspective would contend that the possibility of assisted injection limits the potentially deleterious impact of leaving women and people with disabilities to inject on the street, with no one potentially available to intervene in the event of an overdose.

Overall, my summer at the HIV Legal Network has been illuminating, and I have loved seeing the issues we learn about in law school from a more nuanced and deeper perspective. While most of us would celebrate the Supreme Court of Canada’s acceptance of SCS in its 2011 decision, we never learn about what came after, and how such sites are not perfect solutions on their own. Political activism and advocacy remain necessary to ensure equitable access to government-sanctioned harm reduction services, and to fully realize the human rights of those living with or affected by HIV.

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